Posted
by
Soulskill
on Monday December 14, 2009 @05:51PM
from the hi-2-u-juj-scalia dept.

TaggartAleslayer writes with this excerpt from the NYTimes:
"The Supreme Court agreed on Monday to decide whether a police department violated the constitutional privacy rights of an employee when it inspected personal text messages sent and received on a government pager. The case opens 'a new frontier in Fourth Amendment jurisprudence,' according to a three-judge panel of an appeals court that ruled in favor of the employee, a police sergeant on the Ontario, Calif., SWAT team. ... Members of the department's SWAT team were given pagers and told they were responsible for charges in excess of 25,000 characters a month. Under an informal policy adopted by a police lieutenant, those who paid the excess charges themselves would not have their messages inspected. The lieutenant eventually changed his mind and ordered transcripts of messages sent and received by Sgt. Jeff Quon. In one month in 2002, only 57 of more than 456 of those messages were related to official business. According to the trial judge, many of the messages 'were, to say the least, sexually explicit in nature.'"

A work phone, paid for by the workplace, should be allowed to be inspected by the workplace. Just like email. Just like web traffic. Any abuse of this system, however, should be punished harshly and swiftly. If you want to sext each other, get your own damn phones. I'm sure evidence logs don't need a whole lot of, "Lol hang on let me beat this black guy for being black" mixed with "Done beating him here's a picture of my dick" when at trials.

If there was no formal written policy declaring no lookie - it's claimed a person had a personal informal policy and this is not the department's policy - then SOL, no matter what the Lt. may have said.

I would further say that the fact the Lt went looking suggests there was something the employee was doing that wasnt kosher and there is more to this story. I am betting the person who got looked at was not doing their job.

The fact the SCOTUS took this up is a concern for businesses and sys admins. I would ha

There was a case a few years ago where the cops lied to someone under interrogation to get them to confess, by telling them that $actual_real_named_person has identified them as the culprit (which they hadn't done). She wound up dead 24 hours later. Apparently, she didn't have to be offered protection because she hadn't actually provided the police with the evidence.

I agree, but the details are a little different here. The boss told employees their texts would be kept private. The employees now had legal reason to expect privacy so long as they maintained their legal obligation, which was to pay the overages. The boss then violated their privacy, contrary to the previous assertions.

This is actually pretty cut and dry. The employees were assured of privacy. The employer lied. The employee was fired as a result of the employer's lie. Had the employer not lied, its doubtf

A work phone, paid for by the workplace, should be allowed to be inspected by the workplace.

...and it could be, as long as it was done routinely, consistently, and (if impractical to inspect all employees’ devices) randomly, without bias.

Putting all the employees’ names in a database and pulling a random name every week to have the employee’s texting history reviewed would be an acceptable implementation of this policy. “Randomly” deciding to inspect an employee’s texting history is not acceptable... and they didn’t even have precedent for doing that.

Really, honestly, you shouldn't be using your company's phone/pager/etc for personal use. People do it all the time, and companies allow some leeway because everyone's human. It doesn't usually cost the company much and it makes their employees happier. It just gets their panties in a knot when people use company resources for illegal/conflict-of-interest kinds of things.

And that's all thats required to know they were in the wrong. If they were going to change their mind, they need to inform their employees that the change is occuring, and that his privacy will then be at stake. They should only be able to check pager transcriptions after that day.

You can't say one thing and then do another, even if it's to stop sexually implicit messages. Deceipt cannot be tolerated at any level of government.

And that's all thats required to know they were in the wrong. If they were going to change their mind, they need to inform their employees that the change is occuring, and that his privacy will then be at stake. They should only be able to check pager transcriptions after that day.

True, but only if said lieutenant had the authority to override department policy on the matter in the first place.

# - True, but only if said lieutenant had the authority to override department policy on the matter in the first place.

He had authority over the sergeant, it's no different to a mid-level boss telling his underlings they can knock of half an hour earlier today because (say) the network is down, and then the upper level boss sacking the lot of them for goofing off.

So each time my boss tells me something, I'm supposed to go up the chain of command until I am sure my boss is not in the wrong? That might work for a small set of rules (United Code of Military Conduct) but it can't work for general policy. General company policy is based on your boss having the authority to decide what you do and don't do (within reason). If my boss says I can use a company resource for personal use, and that they don't monitor such personal use, what about such a directive is so unrea

By not ensuring that a policy is enforced all the way down the line, the authority to change it is implicitly passed down the line as well.

In other words, if you have the authority to make a policy, and then fail to ensure that the middle management underneath you enforces that policy, you are implicitly giving them the authority to change it.

If it comes to your knowledge that middle management is not enforcing the policy, you must immediately issue a memo ordering them to begin enforcing it – which m

Who is "they"? The Police department? They didn't change their mind, and had always explicitly stated that messages could be monitored. They The lieutenant? He didn't have the authority to make changes in policy.

He's the one enforcing the policy though. Had it been NOT the lieutenant doing the inspection I think I'd be a little more lenient in my standing, but its basically 1 Man deciding to change his mind. It's not 1 man saying one thing, policy saying another, and another guy doing the inspection.

No, this is a man going back on his word. Whether it's within his rights to do change policy or not it doesn't matter, this guy was a jerk, and the courts are upholding the spirit of the law.

The summary, however, oversimplifies things. In the opinion, the Court notes that the sergeant signed an acceptable use policy in 2000, and was informed at a general meeting in 2002 that pagers (and their messages) were considered email as far as the policy was concerned. The city had a policy/practice (not entirely clear how official) that employees who went over the 25,000 character limit would pay the overage. The lieutenant who acted as the bill collector apparently told members of the force that if the

Browsers with "Stealth" (porn) browsing features, schoolkids sending naked pictures of themselves via cellphone, laptops loaded with porn, and you really expect company pagers not to be used to shmooze with others?

I have written emails to friends, family, and my girlfriend from my work laptop on almost a daily basis. I would never send something that would later embarass me if it became public, but I know there is no expectation of privacy while on this laptop... regardless of what my boss told me.

How is this any different than employers reading your e-mail? There's already statements from the Supreme Court that "While police, and even administrative enforcement personnel, conduct searches for the primary purpose of obtaining evidence for use in criminal or other enforcement proceedings, employers most frequently need to enter the offices and desks of their employees for legitimate work-related reasons wholly unrelated to illegal conduct."

What makes this one "different" is that the organization who owns the equipment is a government entity, not a private business.

If this were a case involving John's Private Company Inc, there would be no case here...everyone up to and including SCOTUS has ruled "he who owns the equipment or account makes the rules and can look at their use and content freely".

But to my knowledge they've never before ruled on how/if that applies to divisions of government.

Because employers are reading email on work computer paid for entirely by work. In this case, they were reading messages on a pager where the user was paying for any and all costs over the 25k characters a month. In this case, since the business is not footing the bill themselves, they do should not have a right to monitor how that device is entirely being used (aside from the fact that it may have exceeded the stated limit of 25k characters that they were going to pay to cover).

As for your "

Since Text Messages and E-Mails are handled by third parties, wouldn't this also apply to the recent ruling that you don't have a right to privacy?

Read the decision.The contents of communications made using an RCS can be disclosed to the owner of the equipment (the city).The contents of communications made using an ECS can only be disclosed with the consent of the sender or intended recipient.

The 9th Circuit Court decided that a two-way pager is an Electronic (ECS), and not Remote(RCS), Computing Service.This makes all the difference in the world under California State law and the Constitution.

They use pagers? And, more to the point, they *pay* to use pagers? They should have been using SMS on their mobile phones. Personal phones, rather than employer-supplied ones. That way it would be free from employer snooping, and free to use.

The year is 2002, not 2009. SMS was not very prevalent at the time, and inter-provider SMS was still occasionally glitchy. That was the time of dedicated alphanumeric pagers waning in popularity while the 'cool kids who wanted to be like the drug dealers' were discovering SMS on their phones.

Gimme a break. I didn't realise the police were clergy! What law was this guy breaking by sending sexually explicit messages? As for the issue of using police equipment for personal messages, if this was permitted at the time, again what's the problem? If he was breaking a law why isn't this what we're hearing about rather than the fact that he liked to talk dirty?

I don't this is a case of breaking laws. The issue is larger than that especially when the Supreme Court takes a case. At issue is what privacy rights employees can expect when they use communications systems provided by their employer. The Supreme may narrowly rule only for government employees though. Most employers have policies for older technologies like telephones and mail but not have defined their policies on the new communication systems like texting.

As for the issue of using police equipment for personal messages, if this was permitted at the time, again what's the problem?

I didn't see anywhere in the decision that said the officers' behavior was permitted.As a matter of fact, both sides agreed that the AUP prohibited such usage.The Court decided that the officers had a right to privacy and the searches were unreasonable, that's it.

If the Lieutenant had stuck to the policies as they were written, there would have been no presumed right to privacy and this would never have ended up in court.

According to the trial judge, many of the messages 'were, to say the least, sexually explicit in nature.'

...and, what? Is there a policy against it? Was the other party a co-worker? Why is this remotely relevant?

The policy states:

The use of inappropriate, derogatory, obscene, suggestive, defamatory, or harassing language in the e-mail system will not be tolerated.

So if I were to exchange sexually explicit messages with my wife, for example, how does the policy apply? It would then be appropriate, favorable, natural, explicit, complimentary, and welcome. What happens now?

“[u]sers should have no expectation of privacy or confidentiality when using these resources.”

And likewise, people peeking in my bedroom window should expect to see my hairy butt from time to time. Don't want to see, don't look. Look, you get what you asked for...

The closest thing I can find is this:

Chief Scharf referred the matter to internal affairs “to determine if someone was wasting . . . City time not doing work when they should be.”

Hey, Chief, they were. Investigation over. Chances are, you were, too, unless you somehow work your entire shift without periods of non-work time. That includes your bathroom time, sir. The salient question should be, were any dollars actually wasted? Was there any SWAT not getting done because of the excessive pager use?

Not according to the court documents. Not as I understand the language, as I outlined in the quoted portions of my post. The policy stanza is clearly targeted at harassment issues rather than any puritanical interests. I welcome your disagreement, but some facts in support of it would be nice.

I heard this on NPR this morning and the fact that they were using the phrase "grey area" astounded me.

Look, it's simple: if your employer owns a device, and allows you to use it, you are not to ever use it for personal reasons, nor should you ever expect even the slightest amount of privacy for communications using the device. Even (and probably especially) if they give you permission for personal use. That goes for cell phones, pagers, computers, slide rules, everything. That means you do not log into personal Facebook, Google, or Hotmail at work. You do not use the company phone to call home. If you do any of these, you've 1) probably violated the terms of your employment and 2) have given the company/government permission to peer into all personal communications made with your employer's equipment.

You have explicit rights (in most cases) to privacy and use of the property that you actually own. That's it, the line is drawn there. I can't believe there is any controversy over this.

Look, it's simple: if your employer owns a device, and allows you to use it, you are not to ever use it for personal reasons, nor should you ever expect even the slightest amount of privacy for communications using the device. [...] That goes for cell phones, pagers, computers, slide rules, everything. That means you do not log into personal Facebook, Google, or Hotmail at work.

But I can't make it through the day without checking out the latest slashdot story on my company-issued slide rule!

Unless of course your employer told you that you could use it for personal use if you covered those charges. Then when that employer turns around and changes their mind without telling the employees and then takes action against said employee's for doing exactly what they were told they could do.

It's called lieing, not changing your mind. The supervisor lied to the employees, either that or he got angry at the employee in question and decided to change the policy for this one employee so he could find a rea

You have explicit rights (in most cases) to privacy and use of the property that you actually own. That's it, the line is drawn there. I can't believe there is any controversy over this.

Of course there's controversy! In case you haven't noticed, a vast majority of our "personal" data has wandered out onto networks and servers that none of us control. This has been a gradual process going on for years, but the very attributes of modern networked computer systems make the real-world impact of these changes much greater now. This has radically changed the landscape under which the 4th amendment (and a lot of other law) was originally conceived. I'd say that review of the applicability of

I was just going to mod you "off topic" but decided to explain why instead.

Your post is a red herring. This has nothing to do with "a vast majority of our "personal" data has wandered out onto networks and servers that none of us control." This is about someone using his employer's equipment for personal use and the employer examining that personal use. That is the total extent of what was happening.

There is no controversy here. Someone used his employers equipment for personal use. Employer inspected the e

The reason it's a grey area is that technology has advanced far faster than the laws that regulate it.

Look, it's simple: if your employer owns a device, and allows you to use it, you are not to ever use it for personal reasons, nor should you ever expect even the slightest amount of privacy for communications using the device. Even (and probably especially) if they give you permission for personal use. That goes for cell phones, pagers, compu

What I've seen on government (at least federal government) systems is that all communications are subject to monitoring and there is no expectation of privacy except for privileged communications (personal representation or services by attorneys, psychotherapists or clergy).

There is a policy that allows limited personal use, as long as it doesn't cost the government any more money and some other conditions (no pr0n, not to be used to run a business, no sexual harassment, etc.), but the expectation of privac

The Ontario Police Department had a formal policy reserving the right to monitor “network activity including e-mail and Internet use,” allowing “light personal communications” by employees but cautioning that they “should have no expectation of privacy.” The policy did not, however, directly address text messages.

Members of the department’s SWAT team were given pagers and told they were responsible for charges in excess of 25,000 characters a month. Under an informal policy adopted by a police lieutenant, those who paid the excess charges themselves would not have their messages inspected.

Any policy has to be consistently enforced or else it loses any credibility. If you suddenly decide to enforce a policy that you haven’t been enforcing until now, you can expect a discrimination case to be filed by the person you’re enforcing it against. You singled them out for harsher treatment after routinely treating everyone else differently. This sort of thing can and will come back to bite you, as evidenced by this article.

Under an informal policy adopted by a police lieutenant, those who paid the excess charges themselves would not have their messages inspected.

And was it the police lieutenant who read the messages or someone higher up? If department policy says that messages can be read, I don't think a sole lieutenant has the authority to change that policy, and he certainly can't speak for his bosses.

The key is consistency. Although I do not manage anyone, I have heard from my own boss about enough labour/management disputes that I know this to be true.

A policy cannot be enforced willy-nilly. You can’t just reserve the right to do something, consistently not do it, and then do it one day out of the blue for no apparent reason at all. Either it must be enforced consistently to everyone, or it must be enforced to a random sampling of employees with no bias or discrimination as to who is selected.

The word "including" means that there are more items than those listed. However, they must come from the same group.

(At least in the parent) There is no mention of monitoring telecoms, only Internet communication types. The actual policy may list telecoms and mobile devices, but I can't be bothered to look. If it's not there, I'd start there as a defense.

Except that the work device was expected to be used for personal use as well if you pay your bills.

It'd be like your company buying you and IPhone and paying for a Dataplan. You are perfectly allowed to to put unlimitted Texts, your fav 5, or whatever other plan you want on it so long as you cover the extra Cost.

What seperates this here is that the police force said if you pay the bills you won't get inspected.

"Read the Article. Read the other responses in this thread. Hell, Read the goddamn summary. Idiot. "

I did. The article did not say the original policy was "written", just that it was formal. It then went on to mention an informal policy on the part of the lieutenant, again not mentioning whether it was written or not.

Example:Your direct supervisor tells you, you can go home early, no need for you today.You leave.For one reason or another, HIS supervisor felt you shouldn't have left and fires you.I'm pretty sure with the right lawyer one can argue, you had a reasonable expectation that it was okay for you to leave and not suffer the consequences, despite what the policy and your supe's supe said.

This isn't really any different, if your superior says its okay for you to do something, and someone over his head comes down on you for it, you have a defense.

Depends. I don't believe that would hold up for a second under an at-will employment scheme. Under those you can be fired for no reason at all, or any legal reason. That would include your direct supe screwing up and his supe taking it out on you.

The only few reasons you can't be fired under work for hire are prohibited are things like racial, sexual, religious bias, and a few other limited categories.

In most "at will" states, the reasons for discharge also become a major factor in how the unemployment compensation if any will be paid. Also, there is a reputation thing that comes along to some of the more senior staff members where a firing can severely damage the ability for a rehire. Some jobs are only available to people with good job records and a firing like that could really screw someone unjustly.

So even though it would be meaningless in keeping your job, there may still be recourse available if n

well to be more accurate "Under an informal policy adopted by a police lieutenant, those who paid the excess charges themselves would not have their messages inspected." emphasis mine.

So it wasn't in writing. i.e. it didn't exist. Not fun, not cool on the part of the Lt. but they have zip to stand on IMO. I'm amazed SCOTUS upheld this. All it would take is a promotion or retirement and that Lt. is no longer there to uphold the 'informal policy'.

It might have been in writing, just not from someone with the authority to set formal policy. I can easily see an email saying if you go over the limit, expect to pay the overage charge. Otherwise, be prepared to have the messages reviewed to make sure its truly business related.

How many offices have an "unwritten" policy that you can use your deskphone for personal during lunch, maybe even going so far as to say use a calling card for personal long dist? How does that change your expectation of privacy?

Well aren't you silly, don't you know that every so often an angel descends from heaven and grants a baby the power to be simultaneously an asshole and a "hero" of the community AND grant them a position of power?

Note, the reason you don't talk to the police is because they lie to you - which happens to also be why you don't believe a word they say. They're job is to put people in jail, I am a person, hence they aren't on my side.

My employer has no specific policy against personal internet usage but that doesn't mean that I'm going to use my company workstation to send sexually explicit "fuck me!" messages to my girlfriend.

No. But if your employer HAD a specific policy saying "if you pay your internet usage charges, then we will not monitor the content of your usage", and then they turned around and monitored the content of your internet usage, then you would have every right to send any message you want to your girlfriend and they would have no right to read it.

It's their property. That's what makes it ok for them to search it.
If I lend you my car are you going to deny me the right to search it and see what you are doing with it?

Maybe if you say "Here's my car, I'm not going to search it or ask you what you're doing with it."Why the police station didn't think to make a policy that allowed them full access to the taxpayer purchased equipment is an interesting question in and of itself.

The written policy is only enforceable if it is done consistently. Showing that it was not consistently enforced – e.g. sworn testimony by other officers that “you pay for the overage, we don’t read your messages” was the agreement as understood by all – and was only enforced in your case indicates that you were singled out, which implies discrimination of some sort, which is a direction that management definitely doesn’t want the issue to move in.

A police department asking a telecom company to turn over transcripts of messages is a somewhat different position, though. Does a telecom company really treat those requests exactly as any other customer asking for transcripts of messages? Or does it treat it like a police request for transcripts?

How can he be overusing it, since they explicitely said you can pay for your own usage, being considered that in excess of 25000 characters? If it all had to be work usage, then they should pay the whole thing regardless, and do some checks if it seems excessive.

The Lieutenant may have committed no crime, but (while IANAL) I believe it may be possible to argue that The Lieutenant did violate a verbal contract, which could leave him open to be sued to recover all damages.

Remember that any time somebody would answer yes to "So, do we have an understanding?" a verbal contract exists. The question of if the contract is valid or binding is another matter, one which I know far less about.

2. A middle manager (The Lieutenant) made an unofficial policy that the text messages wouldn't be inspected.

3. The inspection was not made simply because it was an organizational resource, it was made because the officer in sergeant in question was overusing his phone, and they wanted to find out why.

Yes – but if the employee in question can substantiate his claims of #2, he has a case for discrimination, and management has to prove that either (a) the check was random and unbiased or (b) his case warranted special attention.

It’s clear that (a) holds no water in this case – a true random selection would be designed so that bias could not be introduced, and having humans in the decision-making process almost by definition introduces bias. With respect to (b), assuming he paid for the ex